Excerpt: ...mages The Court grants the MS] on the following -ssues: Issue 5: Discrimination. Issue 6: Retaliation. PROCEDURAL ISSUES: The language and numbering of the issues is not exactly parallel in the notice of moton and the separate statement. As such, the Court has the discretion to deny the moton on that basis. The Court declines to do so. EVIDENTIARY ISSUES: Plaintiff's objections to Defendant's evidence: 1-3: Overruled. These objections go toward w...

Excerpt: ...ly. The Court finds that there is no excusable neglect, which is the only grounds cited in the Notice of Moton or Motion itself. Further, there was no Answer attached to the motion, which renders the Court without authority to proceed. The Court cannot rule on the motion effectively made in the reply brief without giving Plaintiff an opportunity to respond, which is one option. If Plaintiff elects to have the motion for mandatory relief heard wai...

Excerpt: ... neurological examination." It then lists some issues the doctor will check and concludes that he will do other medically necessary tests. This is facially deficient. The Court considers the assertions raised first in the reply brief only to note that this still isn't sufficient. code Civ. Proc. SS 2032.220(c), 2032.320(d), and carpenter v. superior court (2006) 141 cal.App.4± 249, 260 outline the requirement to specify the procedures in detail,...

Excerpt: ...Court is unpersuaded that conversations prior to the filing of the complaint about the dispute are sufficient to give actual notice of the lawsuit. As Plaintiff concedes, the request for relief under S 473.5 is timely. Defendant asserts that he was not given actual notice despite multiple mailings and efforts to contact him. The assertion of lack of knowledge is unconditional. Sanctions are only available under S 473, and not S 473.5. In this cas...

Excerpt: ...l — and some fail for clear reasons. The Court is also required to limit sanctions, if any, to those that will deter the behavior. In this case, the request for attorney fees was by statute or case law, and by a reasonable extension of case law. Nonetheless, the Court does not view it as the sort of abusive conduct it finds sanctionable (and I have, indeed, found conduct sanctionable, and have issued sanctions designed to deter the adverse cond...

Excerpt: ...and the California Judicial Canons all require the Court to treat trial dates as firm. With regret, the Court believes it has an affrmative obligation to grant the motion under these circumstances. The Court is not at all persuaded by Plaintiff's claim that this amendment could not have been effectuated earlier. But Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 565 instructs that trial courts should be very liberal indeed as to allow-ng amendmen...

Excerpt: ...ural unconscionability and some degree of substantive unconscionability. The Court finds that the agreement at issue is unenforceable due to unconscionability. The Court finds that procedural unconscionability is shown by the fact this is a contract of adhesion, there is no claim that the terms were negotiable, and under either party's factual assertions, there was some requirement to sign and return the documents to be hired. The offer also expi...

Excerpt: ...s wasn't accurate, and the Court ordered that the motion be immediately filed. Defense counsel indicated that the motion had already been prepared. The Court sanctioned counsel $750 to be paid to Plaintiff's counsel to pay for his time and efforts in appearing and going through two separate packets which did not contain points and authorities. The Court has discretion whether to accept the points and authorities, and uses that discretion to do so...

Excerpt: ...ponses are confusing and fail to identify whether Plaintiff possesses any materials responsive to the subject requests. Moreover, with regard to the asserted objections, the responses fail to identify the materials subject to the same and fail to provide sufficient information (or a privilege log) for the defense's use in determining whether the claimed privileges apply. Lastly, the responses fall to prov-de adequate support for Plaintiff's claim...

Excerpt: ...a Diaz v. General Motors LLC: "This Court once again reminds the Erskine Law Group, Inc. not to cite to unpublished Superior Court cases. (T8G Ins. Service Corp. v. Superior Court (2CM) 96 Cal.App.4th 443, 447, fn2.) Further reminders will come with sanctions." This further reminder comes from an opposition filed three weeks later. The Court suggests that counsel take a stronger interest in the rules governing attorney conduct. The Erskine Law Gr...

Excerpt: ...ute a conflict. (End disclosure). Prior contnuance: The Court begins by noting that at the ex parte hearing on June 8, 2023, continuing the then-set trial date to October, Plaintiffs' counsel agreed with the assertion that liability was and remains a serious issue. Further, at that hearing, all parties represented that the primary delay issue was mediation and that the Court's delayed ruling on the Motion for Summary Judgment contributed to the d...

Excerpt: ...on of the LICL; a First Amended complaint adding a PAGA claim was filed shortly afterward. The subject settlement agreement and proposed notice are attached as exhibits to Attorney Bokhour's declaration in support of the motion herein. The motion is also supported by a declaration from Attorney Falakassa (primarily as to the experience of class counsel and reasonableness of the charged fees) and by a declaration from the representative plaintiff,...

Excerpt: ...itatons to Superior Court cases are not permitted. (TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4th 443, 447, fn2.) There are good reasons for this rule; the Court does not have access to every trial court ruling, and cherry-picking is unhelpful. Further, I have an ethical obligation to be an independent jurist." Despite being aware of this rule, Plaintiff chose to file a brief that re-argued that this court should consider other t...

Excerpt: ...rapy was unnecessary. As to harm, Dr. Schmidt at paragraph 20 asserts as follows: "Ms. McCoy's harm from the administration of neoadjuvant chemotherapy/radiation therapy included incontinence, fatigue, and depression. She claims also to spend at least 4 hours per day on the toilet with diarrhea. None of these conditions she claims to have had prior to being administered the chemotherapy/radiation therapy, according her declaration and these condi...

Excerpt: ...ant Second Amended Complaint, which eliminated the Sixth and Seventh Causes of Acton from the pleading altogether. Therefore, the instant demurrer attacks causes of action to which the defense's previous demurrer was overruled, purportedly on the "new" ground that Plaintiff fails to sufficiently allege exhaustion of administrative remedies, as is required prior to bringing claims based on FEHA. This argument was raised in Defendant's reply brief ...

Excerpt: ...te of judicial judgment. (See, e.g. Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1106– 1107.) Moreover, the Court Þnds that Pe
Ÿ
Ÿoners have demonstrated their en
Ÿtlement to recover costs in the amount of $17,140, represen
Ÿng the a
©orney's fees awarded by the arbitrator and the Þling fees incurred in connec
Ÿon with this ac
Ÿon. However, the Court lacks power to award arbitra
Ÿon costs that should have bee...

Excerpt: ...nds that the papers demonstrate insufficient meet-and-confer efforts prior to submission of the instant motion. For example, it appears that the defense has proposed a stipulated protective order which would arguably permit the production of several of the items in dispute. Therefore, the Court has concluded that the parties have not yet exhausted the potential for them to further narrow and/or resolve the issues presented herein with the pursuit...

Excerpt: ...6 Cal.App.4th 443, 447, fn2.) There are good reasons for this rule; the Court does not have access to every trial court ruling, and cherry-picking is unhelpful. Further, I have an ethical obligation to be an independent jurist. FACTUAL SUMMARY A separate case filed on November 14, 2019 by Brianna Dennis in Santa Clara Superior Court involved the same Defendant and similar issues. This case was filed on June 22, 2020. Ross answered on July 23, 202...

Excerpt: ...oot as to him. The Court anticipates that the motion as to Aurora is not being pursued given the opportunity afforded to speak to her on August 9. Under Code Civ. Proc. S 2024.020, any party shall be entitled as a matter of right to complete discovery proceedings on or before the day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial, and except as provided in S 2024.050, a continuan...

Excerpt: ...mpetent expert testimony that they acted at all times within the applicable standard of care. Ko Declaration, paragraphs 5 — 11; and Monjazeb Declaration, paragraphs 6 — 11. This expert testimony is sufficient to shift the burden under Code Civ. Proc. section 437c(p)(2) to plaintiffs to provide evidence of breach of the standard of care. Causation must be proven within a reasonable medical probability based on competent expert testimony. Broo...

Excerpt: ...and conditions set forth therein and the Gross Settlement Amount and the allocation of payments. The proposed settlement terms are as follows: (1) Gross Settlement Amount of $480,000.00; (2) Attorney's Fees of $160,000.00 (1/3 of the Gross Settlement Amount) and costs of up to $10,000.00; (3) Settlement administration costs of approximately $10,500.00; (4) $10,000.00 allocated for PAGA Penalties under the Private Attorney General Acton of 2004 ("...

Excerpt: ...d not dispute the amount in either its opposition or its response to the separate statement. (See UMF's 44-45) As such, the Court is mandated to grant the motion. The Court orders Plaintiff to prepare an amended order consistent with this ruling. The Court also adopts its prior tentative ruling, as follows: Defendants do not dispute that the loan, lease and guaranty agreements were entered into or that the defendants have not fulfilled their obli...

Excerpt: ...in their favor. Specifically, the express language of the Property Management Agreement dictates that the contractual terms were effective at the time of Plaintiff's injury. (See, e.g., UMF 8.) In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement. (Centex Golden const. co. v. Dale Tile co. (2000) 78 cal.App.4th 992, 996-997, citation omitted.)...

Excerpt: ...tends that as the contract is not attached and the allegations are insuffciently precise, the complaint as a whole fails. Defendant further alleges that a lack of specificity as to which Defendant did which things is fatal. Defendant is correct. The Demurrer The First Cause of Action for Declaratory Relief This cause of action is based on the parties' respective rights under the insurance contract, and therefore the sufficiency of the allegations...

Excerpt: ...Judicial Notice - DENIED. As to Plaintiff's requests for judicial notice, none need be taken for the Court to consider published state or federal cases. The California cases are legal authority, and the federal case may be persuasive. The Court finds Defendant's request for judicial notice of unpublished state court cases disingenuous at best. There is a case directly on point. (TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4th 443, ...

Excerpt: ...certifying the merger. The merger is the sole issue that Defendants contest, and therefore the Court is required to give Defendants an opportunity to respond. However, the Court currently views the request as valid. Defendants do not dispute that the loan, lease and guaranty agreements were entered into or that Defendant have not fulfilled their obligations under the agreements. Defendants only dispute Plaintiff's contention that CIT Bank, N.A. w...

Excerpt: ... had an existing SBA and construction loan agreement with ATI relative to its construction project at the hotel property but that the Bank served a notce of default against ATI based on a "negligent mischaracterization" of ATI's renovation project involving demolition of the hotel lobby as destruction of collateral which represented security for the loan. In addition, the Bank withheld further constructon funding it had promised to provide under ...

Excerpt: ...laint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States. Keystone contracted with RGM to manage the property. Keystone's breach of contract cause of action in the cross-complaint against RGM concerns the amount of insurance obtained. The Property Management Contract contains an express defense and indemnity...

Excerpt: .... 5382; Cal. Rules of Ct., rule 3.769.) Good cause appearingto the satisfaction of the Court, the Court is inclined to find that the proposed settlement and the associated fees and costs are approved as set forth in the motions and supporting papers, as follows: The gross settlement amount is $170,000. Of that, $56, 666.67 is apportioned for attorney fees, $16,368.58 in costs, $7,500 for named Plaintiff, $8,972 in administrative fees, and $7,500 ...

Excerpt: ...ona slant as the original moton Boilerplate usage should be clearly case related. Use of ALL CAPS is strongly disfavored. Bolded portions should be bolded for a reason. The Court intends to rule on the matter despite the late filing of the meet-and-confer letter. The Defendant's internal records are suggested to be a proper record for judicial notce. However, there is no evidence provided that the records do not reflect a claim being made. This r...

Excerpt: ...t for production was served by electronic means on Friday, March 24, 2023. Powers Declaration, paragraph 4. Plaintiff's responses to the requests were received on April 25, 2023. Powers Declaration, paragraph 5. Pursuant to Code Civ. Proc. S 2031.260(a), responses were due 30 days after service. Pursuant to Code Civ. Proc. S any right or duty to make any response within any period after the service of the document, which time period or date is pr...

Excerpt: ...arch 24, 1999, as Exhibit A to the Complaint. Plaintiff's conclusion that this judgment vacated his 1996 conviction is not accurate. Complaint, paragraph 10. The judgment terminated Plaintiff's probation and converted the original restitution order of $46,993.00 toa civil judgment. Complaint, Exhibit A. Plaintiff alleges that defendants' actions in garnishing his bank account caused him emotional distress. Complaint, paragraphs 10, 11 and 14. How...

Excerpt: ... personal jurisdiction, the default judgment is void; such a judgment can be challenged at any time. (CCP S 473(d); Strathva/e Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) Where a defendant challenges the court's personal jurisdiction on the ground of improper service, the burden is on the plaintiff to prove the existence of jurisdiction due to effective service. (Summers v. McClanahan (2006) 140 Cal.App.4tH 403, 413.) However, a filed ...

Excerpt: ...6 concerning incidences of Covid- 19 infections during August, September, October, November, and December of 2020, and January of 2021, with all patient information, relative information, or other identifying information redacted from the documents. Defendant is also ordered to produce, by no later than July 12, 2023, all documents responsive to Request No. 7 sent to governmental authorities regarding incidences of Covid-19 infections in August, ...

Excerpt: ...e Civ. Proc. S 430.41 A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. SKF Farms v. superior court (1984) 153 cal.App.3d 902, 905. Defendant states that the Complaint exceeds the three-year statute of limitations, but defendant does not cite to a specific statute in support of this assertion that a three-yea...

Excerpt: ...overy requests as one involved with the events at issue in the subject lawsuit. The Munoz declaration is facially defective as it does not contain either the location of the signing nor the words "under the laws of the state of California," and is therefore stricken. Nonetheless, the Court has questions, especially to determine if sanctions are appropriate. b) HEARING REQUIRED. The Court has the concerns raised above and knows of no authority tha...

Excerpt: ...ong period of tme and there is some inference that they were coordinated. Additionally, the alleged statements by both named Ruijssenaars indicate some knowledge regarding the ongoing issues and the persons responsible. The Court rejects the argument that Ms. Ruijssenaars was the parent of Does 1-50, as this is not pled. As to the Eighth Cause of Action, the Court independently raises its own concerns that injunctive relief is not a cause of acti...

Excerpt: ...udge Begen on March 24, 1999, as Exhibit A to the Complaint. Plaintiff's conclusion that this judgment vacated his 1996 conviction is not accurate. Complaint, paragraph 10. The judgment terminated Plaintiff's probation and converted the original restitution order of $46,993.00 toa civil judgment. Complaint, Exhibit A. Plaintiff alleges that defendants' actions in garnishing his bank account caused him emotional distress. Complaint, paragraphs 10,...

Excerpt: ...efendant correctly points out some errors in the Court's earlier calculations. The Court does not believe it has authority to correct the judgment at this stage, as Defendant correctly observes. (a) The Court finds that Plaintiff's cost memorandum was timely submitted. (Cal. Rules of Ct., rule 3.1700(a)(1).) Specifically, the clerk's service of a copy of the file-stamped judgment did not specify that it was performed by order of the court or purs...

Excerpt: ...fs, to be paid by Cashman Creek Ranch LLC and Longstreth to plaintiffs' counsel Keric Cushing if Defendants accept this ruling. Otherwise, Defendants will be given additional time to respond to Plaintiff's late-filed detailed records. Plaintiffs' Request for Judicial Notice is GRANTED. Civil Code S 1717(a) provides in pertinent part that in any action on a contract, where the contract specifically provides that attorney's fees and costs, which ar...

Excerpt: ...s, Defendant was in possession of the full report. At the last hearing the Court attempted to discern why the initial report sent from Plaintiff's law firm was incomplete in a manner which led Defendants to err in their appraisal of the situation. Defendants also explained to the Court's satisfaction why the Defendant's representatives signed off on the prior admissions. Code Civ. Proc. S 2033.300 prov-des a safe harbor when the admission was the...

Excerpt: ...ferences for arbitration. (See: St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal. 4th 1187, 1195; and Engal/a v. Permanente Medical Group, Inc. (1997) 5 cal. 951, 971-972.) But the Court enforces only the "Applicant Statement and Agreement," which contains a PAGA carve-out. The alleged superseding clause in one of the other agreements can't overcome a separate agreement made at the same tme. The Applicant Statement and Agreement...

Excerpt: ... declarations prov-ded by Defendants authenticate the pictures themselves. OVERRULED. SUSTAINED. OVERRULED. OVERRULED. SUSTAINED as to the "I am informed and believe" statement only. OVERRULED. see number 2. SUSTAINED. Defendants Evidentiary Objections to the Declaration of Lori Sicard: 2. 3. 4. 5. SUSTAINED. OVERRULED. The reason for the delay in pursuing the matter has raised. OVERRULED. See below. The parties raise issues in a manner that is u...

Excerpt: ..., and as to costs the Motion is ruled on under the Court's Tentative Ruling on Carol Sue Hamilton's Motion to Tax Costs. Ms. Hamilton claims that Ms. DiFazio lacks standing to file the Motion because at the time the Mohon was filed Ms. Hamilton was only the proposed administrator. However, Probate Code Section 850 petitions may be brought by any interested person, and in any event now that Ms. DiFazio has been appointed as administrator she certa...

Excerpt: ...ithin the standard of care. Doctors Medical Center of Modesto, Inc. has filed a Motion to Compel plaintiff Bernadette Davoud to Respond to Supplemental Interrogatories, Set One, and a Motion to Compel plaintiff Bernadette Davoud to Respond to Supplemental Request for Production of Documents, Set One, both of which are set to be heard on May 3, 2023, in Department 22. The Court takes both of these motions OFF-CALENDAR as being moot due to the Cour...

Excerpt: ...ns and portions of the Tenth Cause of Action for Unfair Business Practices which reference other similarly-situated employees and the general public, on the grounds that the allegations are irrelevant and improper. Punitive Damages Plaintiff agrees that he cannot recover punitive damages for his wage claims (the first, second, third and fourth causes of action) or for his tenth cause of action for unfair businesses practices. Civil Code S 3294 se...

Excerpt: ...3, 447, fn2; Rule of Court 8.1115.) The reference to "this Court" and the same agreement caused me to look up the trial case; it was a different judge who did so. These rules are in place because it is not persuasive authority for an unpublished case of any stripe unless it falls under one of one of the narrow exceptions. This is not one of them. under the judicial canons, I am not to be swayed by citations to common practice or other judges' rul...

Excerpt: ...tes that the excess length of Plaintiff's motion is relatively insubstantial and chooses not to issue sanctons for that or other violations. Plaintiff is cautioned to review the Rules of Court. The Court is limited to the sanctions requested by the motion, and Defendant Derek Taylor Sr. has met the Court's and counsel's patience with failures to perform basic functions. The Court anticipates those issues raised in the reply brief will be remedied...

Excerpt: ... those questions; the Court will accept oral argument at the May 3 hearing on any issue. (a) As a preliminary matter, the Court finds that Plaintiff's cost memorandum was timely submitted. (Cal. Rules of Ct., rule 3.1700(a)(1).) Specifically, the clerk's service ofa copy of the file-stamped judgment did not specify that it was performed by order of the court or pursuant to Code Civ. Proc. 5664.5; therefore, the same did not constitute notice of e...

Excerpt: ... habit are to award attorney fees only when some element of bad faith is present; I do not want to, for instance, award attorney fees to a respondent where the evidence was simply insufficient to meet the clear and convincing burden. Here, Petitioner failed to note the existence of case FL-23-220, which she now concedes was part of the motive to seek this restraining order. This order was sought to contravene Judge Mumford's order in the other ca...